Miller v. Appleby

• Decision Date: 27 January 1981
• Citation: 183 Conn. 51,438 A.2d 811
• Court: Connecticut Supreme Court
• Parties: Donald M. MILLER et al. v. Jack W. APPLEBY.

Page 811

438 A.2d 811

183 Conn. 51

Donald M. MILLER et al. v. Jack W. APPLEBY.

Supreme Court of Connecticut.

Argued Nov. 12, 1980.

Decided Jan. 27, 1981.

Thomas B. Wilson, Groton, with whom, on the brief, was James F. Brennan, Jr., Groton, for appellant (defendant).

Joseph F. Segal, New London, for appellees (plaintiffs).

Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiffs brought this action for damages, claiming that the defendant had fraudulently misrepresented that the property purchased by them had on it a septic system sufficient to accommodate a two-family residence. The court rendered judgment for the plaintiffs and awarded damages in the amount of $15,069. From that judgment, the defendant has appealed and presses three claims of error. He contends that the court erred (1) in concluding that the defendant knowingly made a misrepresentation on which the plaintiffs relied to their detriment; (2) in awarding damages in excess of the cost of installing a new septic system; and (3) in awarding, as consequential damages, the down payment the plaintiffs allegedly lost when a mortgage on the property was foreclosed.

The circumstances underlying the parties' dispute are not seriously contested and are as follows: The plaintiffs, wishing to ease their financial burdens, decided to purchase income-producing property. They contacted a real estate agent, who brought to their attention a two-family dwelling owned by the defendant. The plaintiffs entered into a contract to buy the duplex house owned by the defendant, and located at 376 Boston Post Road, Waterford.

Before the closing, because of problems the plaintiffs had experienced with a prior home, the plaintiff husband Donald Miller, was concerned about the location and adequacy of the septic system. He inquired of the real estate agent as to the location of the septic system. The real estate agent correctly informed him of the location of the septic tank, but was unable to show him where the leaching field and dry wells were located.

The plaintiffs and the defendant first discussed the septic system at the closing. At that time, the defendant told the plaintiffs that the property had "a large capacity 1200 gallon tank which should be very suitable for a two-family home." The defendant also represented to the plaintiffs that the leaching field was "under the blacktop." The blacktop on the property which the plaintiffs were purchasing was located in an L-shape on the side of and behind the house on that property. At the time of the closing, the defendant owned other property, abutting that sold to the plaintiffs, which had on it a blacktop driveway abutting the driveway on the property sold to the plaintiffs. The plaintiffs therefore believed that the leaching field was located on the property they purchased. Subsequent events disclosed that the leaching field was "under the blacktop" on the abutting property owned by the defendant.

The defendant knew where the entire septic system was located. At the closing, he told the plaintiffs that he had completely redone the septic system approximately six years prior to the closing, and that he had been the contractor when he remodeled the house and redid the system. The plaintiffs purchased the two-family house. They resided in one half of the house and the other half was rented to tenants.

Subsequent to the purchase, the septic system began backing up, and the living conditions on the premises became intolerable. After receiving two complaints from the plaintiffs' tenants, the sanitarian for the town of Waterford ordered the plaintiffs to repair the septic system. To do this, it would have been necessary to reestablish the leaching area. It was determined, however, that the plaintiffs' property was too small to accommodate a leaching system for a two-family house with five bedrooms. The sanitarian also indicated that the state public health code did not permit the use of adjacent premises for the purpose of leaching from the plaintiffs' property.

As a result of their inability to reestablish the septic system on their property, the plaintiffs were unable to use the premises as a two-family residence. Because of the sewage problems, the tenants vacated the premises. As a two-family residence, the plaintiffs realized a monthly rental of approximately $143 from their tenants. The plaintiffs subsequently lost this property as a result of foreclosure proceedings.

We deal first with the defendant's claim of error regarding the court's conclusion of fraudulent misrepresentation. The essential elements of an action in fraud, as we have repeatedly held, are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury. Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970); Clark v. Haggard, 141 Conn. 668, 109 A.2d 358 (1954); Helming v. Kashak, 122 Conn. 641, 642, 191 A. 525 (1937); Bradley v. Oviatt, 86 Conn. 63, 67, 84 A. 321 (1912); Barnes v. Starr, 64 Conn. 136, 150, 28 A. 980 (1894).

Fraud is not to be presumed but must be proven by clear and satisfactory evidence. See Bruneau v. W. & W. Transportation Co., 138 Conn. 179, 182, 82 A.2d 923 (1951); Kulukundis v. Dean Stores Holding Co., 132 Conn. 685, 689, 47 A.2d 183 (1946); Burley v. Davis, 132 Conn. 631, 634, 46 A.2d 417 (1946); Basak v. Damutz, 105 Conn. 378, 382, 135 A. 453 (1926). "Fraud and misrepresentation cannot be easily defined because they can be accomplished in so many different ways. They present, however, issues of fact." Hathaway v. Bornmann, 137 Conn. 322, 324, 77 A.2d 91 (1950). The trier is the judge of the credibility of the testimony and the weight to be accorded it. See DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 547, 391 A.2d 170 (1978); see, e.g., Marko v. Stop & Shop, Inc., 169 Conn. 550, 555, 364 A.2d 217 (1975); Yale University v. New Haven, 169 Conn. 454, 463, 363 A.2d 1108 (1975); Maltbie, Conn.App.Proc. § 194.

The trial court found that all of the essential elements of fraud had been proven by the plaintiffs. The decision of the trial court will not be reversed or modified unless it is clearly erroneous in light of the evidence and the pleadings in the record as a whole. Practice Book, 1978, § 3060D; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). Upon review, we hold that there was ample evidence to support the trial court's conclusion of fraudulent misrepresentation by the defendant.

The defendant's statements with regard to the adequacy and location of the septic system were false representations made as statements of fact. After inquiry by the plaintiff at the closing, the defendant stated that the property had a septic tank which "should be very suitable for a two-family home" and that the leaching field was located "under the blacktop." Since there was a blacktop located on the property which the plaintiffs were purchasing, the plaintiffs could have reasonably believed, and the defendant could have reasonably expected them to believe, that they were purchasing property which had a leaching area on the premises, i.e., an entire septic system on the premises, which was adequate for the purpose of a two-family house.

Evidence at trial indicated that the defendant knew where the entire septic system was located. At the closing, not only did the defendant discuss with the plaintiffs the adequacy of the tank and the location of the leaching field, but he also informed them that six years earlier, he had completely redone the septic system, and that he had been the contractor when he remodeled the house and redid the system. We have had occasion to point out that where a defendant has special means of knowledge, and a plaintiff can under the circumstances attribute to the former accurate knowledge of what is represented, the plaintiff need not show the actual knowledge of the falsity of the representation. See Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 346-47, 232 A.2d 307 (1967); Warman v. Delaney, 148 Conn. 469, 172 A.2d 188 (1961); see also, 37 Am.Jur.2d, Fraud and Deceit § 201.

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